IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
CriminalJail Appeal No.S-97 of 2019
Appellants: Meeral alias Meero son of Jurial alias Ghulam Rasool alias SoonharoMashori, Aslam son of Ghulam Rasool Mashori and Lutif Ali son of Ali Gohar BhurgriThrough M/s. Asif Ali Abdul Razzak Soomro and Safdar Ali Ghouri, Advocates.
The State: Through MrAitbar Ali Bullo, Deputy Prosecutor General, Sindh.
Date of hearing: 27.03.2023
Date of Judgment: 18.05.2023
JUDGMENT
ZULFIQAR ALI SANGI, J.:-Through instant Criminal Jail Appeal, the appellants have assailed the Judgment dated 30.09.2019, passed by learned Additional Sessions Judge-I, (MCTC) Daduin Sessions Case No.349/2015 (Re.The State.Vs.Meeral alias Meero and others),emanating from F.I.R. bearing Crime No.09/2015, for an offence punishable Under Sections302, 324, 337-F(vi), 504, 337-H(2), 109, 148, 149 P.P.C. registered at Police StationKakarwhereby they have been convicted and sentenced as under:
(i). For offence punishable under section 302(b) P.P.C read with section 149PPC to suffer rigorous imprisonment for life as Tazir and to pay compensation of Rs.100,000/-each to the legal heirs of deceased and in default whereof to suffer simple imprisonment for six months more.
(ii). For offence punishable under section 324 P.P.C read with section 149 P.P.C to suffer rigorous imprisonment for five years and a fine of Rs.50000/- each; in default thereof, they shall suffer S.I for four months more.
(iii). For offence punishable under section 337-F(vi) P.P.C read with section 149 P.P.C to suffer rigorous imprisonment for five years as Tazir and each accused shall be liable to pay daman to the tune of Rs.25000/- to injured Nadeem.
The sentences are ordered to run concurrently with the benefit of Section 382-B Cr.P.C.
2. The facts in brief as per the contents of F.I.R. are that there was a dispute between complainant Abdul Khalique Bhurgriand MeeralMashoriover matrimonial affairs and Meeralwas issuing threats to the complainant.On 01.04.2015 complainant alongwith other fellows namely Mashooq Ali, Nadeem Chandio and Allah Bachayowere sitting in otaq of Taj Muhammad Bhurgri when at about 12:30 a.m. (midnight) they saw on the light of a bulb that Meeral alias Meero armed with Kalashnikov, Aslam armed with a pistol, Lutif Ali armed with K.K and two unknown persons came there and by saying that today you will be murdered all the accused made straight firing upon the complainant party resulting Mashooq Ai Bhurgri and Nadeem Chandio sustained firearm injuries and fell down; on cries and noise, the accused fled away while seeing villagers. While MashooqAli succumbed to injuries and Nadeem Chandio became injured and was shifted to the hospital. After the funeral complainant approached the police station and lodged F.I.R. thatthe incident took place on the instigation of Ali Gohar Bhurgri.
3.After the usual investigation, a challan was submitted before the Court of law, after completing all the legal formalities the charge against the appellants was framed on 14-09-2017 towhich they pleaded not guilty and claimed to be tried.
4. The prosecution to substantiate its case examined in all seven P.Ws. and then the side of the prosecutionwas closed.The statements of the accused were recorded under section 342 Cr.P.C., wherein they denied the allegations and claimed their innocence and false implication by the complainant. Accused Ali Gohar and Lutif Ali submitted their further statements; however, they neither opted to examine themselves on oath nor led any evidence in their defence.
5. The learned trial Court on evaluation of the material brought on record and hearing counsel for the parties convicted and sentenced the present appellants/accused vide impugned judgment, as discussed above.
6. Per learneddefence counsel, there are material contradictions in the evidence of prosecution witnesses which haveshattered the veracity of their evidence; that burden of proof always lies on the shoulders of the prosecution for which the prosecution is failed to prove the case;that there is no solid reason regarding motive and no independent witness from the village has been associated; that sister of deceased had lodged F.I.R. bearing Crime No.29/2016; that there are major contradictions in the ocular and medical evidence as well as in sketch prepared by the Tapedar; that owner of the otaqwhere the incident took place has also not been cited as a witness. He lastly concluded that the case of prosecution is doubtful and the appellantsare entitled to their acquittal in the circumstances of the case.
7. On the other hand, the learned Deputy Prosecutor Generalhas opposed the appeal and submitted that all the witnesses have fully supported the case of the prosecution and no major contradiction has been noticed in their evidence; that the ocular evidence is consistent with the medical as well circumstantial account,in that situation,the learned trial Court on being finding present appellants guilty of the offence has rightly convicted and sentenced them by way of the impugned judgment, which requires no interference by this Court, hence, the appeal filed by the appellants is liable to be dismissed.
8. I have given due consideration to the arguments advanced by learned counsel for the parties and have minutely gone through the material made available on the record with their able assistance.
9. The meticulous perusal of the evidence brought on record is entailing that all the witnesses have tried to support the case of prosecution but their evidence on deeper analysis was found unreliable coupled with material improbabilities. The FIR is always treated as a cornerstone of the prosecution case to establish guilt against those, involved in a crime; thus, it has a significant role to play. If there is any delay in the lodgment of an FIR and commencement of the investigation, it gives rise to doubt, which, of course, cannot be extended to anybody else except to the accused.In the case of Iftikhar Hussain and others v. The State (2004 SCMR 1185), it was held that the FIR lodged after conducting an inquiry loses its evidentiary value.In the case of Zeeshan @ Shani v. The State (2012 SCMR 428), it was held that a delay of more than one hour in the lodgment of FIR giverise to the inference that the occurrence did not take place in a manner projected by the prosecution and the time was consumed in making effort to give a coherent attire to the prosecution case, which hardly proved successful. In the case in hand, the distance from the place of the incident and the police station was 2 furlongs, even otherwise, after the incident when the complainant approached police for police letter for the treatment of an injured and conducting postmortem of the deceased but he did not lodge the FIR. The incident of the case in hand was stated to take place on 1-4-2015 at 12:30 am the night however the FIR was registered on 03-04-2015 at 1830 hours; the FIR was submitted before the concerned Magistrate on 04-04-2015, such delay in the FIR has not been explained by the complainant. The Supreme Court of Pakistan in the case of Noor Muhammad v. The State(2010 SCMR 97) has held that when the prosecution could not furnish any plausible explanation for the delay of twelve hours in the lodgment of FIR, such time appeared to have been spent in consultation and preparation of the case, the same was fatal to the prosecution case. It was also held by the Supreme Court of Pakistan in the case of Muhammad Fiaz Khan v. Ajmer Khan(2010 SCMR 105) that when the complaint filed after a considerable delay, was not explained by the complainant then in such a situation it raises suspicion as to its truthfulness. Thus, I am of the considered view that in the facts and circumstances of the case at hand, the explanation furnished by the prosecution is not plausible and such delay in the registration of FIR makes the entire case doubtful.
10. The incident took place at 12-30 am in the night and the identification of the accused is stated to be on the light of the bulb. The bulb was not taken by the investigating officer nor was produced by the complainant party nor does the sketch/mashirnama of the place of wardat reflect the availability of the said bulb. In such circumstances, the identification of the accused persons at the time and place of the incident in the present case is also doubtful. The Supreme Court of Pakistan in the case of Sardar Bibi and others v. Munir Ahmed and others (2017 SCMR 344) has held that “The source of light i.e. bulbs etc. was not taken into possession during the investigation to establish that the witnesses who were allegedly at the distance of more than 100 feet could identify the assailants. So the identification of the assailants was also doubtful in such circumstances of the case.Further in the case of Abdul Rahim v. Ali Bux and 4 others, (2017 P Crl. L J 228),the Division Bench of this Court has held as under:-
“11. Record further reveals that the incident is alleged to have taken place in dark hours of the night and Complainant and PWs/eye-witnesses seen and identified the culprits/Respondents on 7 torch lights, but the said Torches were not produced in evidence, since the source of identification of the culprits is shown as torchlight, which as per verdicts of Superior Courts is weak type of source and unsafe to be relied upon. In this regard reference is made to the case of Hakim Ali, reported in 1996 PCr.LJ 231 (DB-Kar), and case of Aurangzeb, reported in 2008 PSC (Cr.).
11. The motive is always a double-edged weapon. No doubt, previous enmity can be a reason for the appellants to commit the alleged crime, but it can equally be a reason for the complainant side to falsely implicate the appellants in this case for previous grouse.The prosecution witnesses admitted the enmity with the accused persons. The complainant during the cross-examination stated thatbefore the incident accused Ali Gohar has lodged FIR bearing crime No.218/2010 against him for committingdacoity. Inayatullah had also registered FIR against him bearing crime No. 162/2010. The complainant admitted that an FIR was registered against him and his cousin in respect of the abduction of the wife of accused Meeral (Appellant) but the said FIR was false.The complainant denied for registration of several FIRs against him which were registered by the accused party. The injured PW Nadeem during his cross-examination admitted that several FIRs were registered against Abdul Khalique (complainant). PW Nadeem also admitted during cross-examination that an FIR in respect of the abduction of the two ladies of the Umrani community was registered against the complainant and an FIR in respect of the abduction of the wife of appellant MeeralMashori and the wife of accused Ali Gohar was also registered against the complainant. In such circumstances, the evidence so produced by the prosecution cannot be relied upon safely and cannot be made a basis tomaintain the conviction. The Supreme Court of Pakistan in the case ofMuhammad Ashraf alias Acchu v The State 2019 SCMR 652has discarded the evidence of witnesses who have inimical terms with the accused persons and acquitted the accused while extendingthe benefit of the doubt.
12. The prosecution witnesses gave their contradictory evidence and made dishonest improvements in the case which creates very serious doubt. The complainant at the time of registration of FIRhad giventhe date and the time of the incident however when he appeared before the trial court for recording his evidence he had not disclosed the date of the incident. The complainant in the FIR stated that all the accused persons started firing from their respective weapons upon them they saved themselves however deceased Mashooque Ali and the injured Nadeem received injuries. No specific role was assigned against any of the accused in the FIR but the complainant when examined before the trial court where he in his examination-in-chief deposed that accused Meeral and Lutif jointly fired upon Nadeem and Mashooque who sustained injuries. The complainant during the cross-examination admitted that he in the FIR has not specifically mentioned that deceased Mashooque sustained firearm injuries from the firing of accused Meeral and Lutif. The injured witness namely Nadeem also gave contradictory evidence and deposed in his examination-in-chief that accused MeeralMashori had fired upon them, however again stated that three accused persons fired upon them. From a careful perusal of the evidence of the alleged eye-witnesses, it is established that the incident was an unseen incident and the story alleged in the FIR was managed one and this was the reason that on the same day, FIR was not registered and it was registered after three days after due deliberation and consultation. Even after the registration FIR, the witnesses made improvements in the case which on reassessment found to be dishonest based on such dishonest improvements conviction cannot be maintained. The Supreme Court of Pakistan in the case of Muhammad Mansha v. The State (2018 SCMR-772), has held as under:-
“Once the Court comes to the conclusion that the eye-witnesses had made dishonest improvements in their statements then it is not safe to place reliance on their statements. It is also settled by this Court that whenever a witness made dishonest improvement in his version in order to bring his case in line with the medical evidence or in order to strengthen the prosecution case then his testimony is not worthy of credence. The witnesses in this case have also made dishonest improvement in order to bring the case in line with the medical evidence (as observed by the learned High Court), in that eventuality conviction was not sustainable on the testimony of the said witnesses. Reliance, in this behalf can be made upon the cases of Sardar Bibi and another v. Munir Ahmad and others (2017 SCMR 344), Amir Zaman v. Mahboob and others (1985 SCMR 685), Akhtar Ali and others v. The State (2008 SCMR 6), Khalid Javed and another v.The State (2003 SCMR 1419), Mohammad Shafique Ahmad v.The State (PLD 1981 SC 472), Syed Saeed Mohammad Shah and another v.The State (1993 SCMR 550) and Mohammad Saleem v. Mohammad Azam (2011 SCMR 474).”
The Honourable Supreme Court of Pakistan in the case of Muhammad Mansha (supra) also held as under:-
“In that eventuality, the conviction upon the statements of the witnesses who, in the assessment of the High Court, made dishonest improvements and their divergent stances in the FIR and the private complaint made them doubtful then there was no legal justification to convict the appellant Muhammad Mansha on the same set of evidence without independent corroboration conspicuously lacking in the instant case, as held by this Court in the cases of Ghulam Sikandar and another v. Mamaraz Khan and others (PLD 1985 SC 11), Sarfraz alias Sappi v. The State (2000 SCMR 1758), Iftikhar Hussain and others v.The State (2004 SCMR 1185), Akhtar Ali and others v.The State (2008 SCMR 6), Muhammad Ali v.The State (2015 SCMR 137), Mst. Sughra Begum and another v. Qaiser Pervez and others (2015 SCMR 1142) and Shahbaz v.The State (2016 SCMR 1763). The above principle has been appreciated by the High Court in the instant case, but erroneously convicted the petitioner against the said settled principle.”
13.The overall discussion concluded that the prosecution has miserably failed to establish the guilt against present appellants beyond the shadow of any reasonable doubt and it is a well-settled principle of law that for creating the shadow of a doubt, there should not be many circumstances. If a single circumstance creates reasonable doubt in the prudent mind, then its benefit is always extended in favour of the accused not as a matter of grace or concession, but as a matter of right. In this respect, reliance is placed on the case of Muhammad Mansha v.The State(2018 SCMR-772).The rule of benefit of the doubt is essentially a rule of prudence which cannot be ignored while dispensingjustice following the law. The conviction must be based on unimpeachable evidence and certainty of guilt and doubt arising in the prosecution case must be resolved in favour of the accused. The said rule is based on the maxim. "It is better that ten guilty persons be acquitted rather than one innocent be convicted" which occupied a pivotal place in Islamic Law and is enforced strictly because of the saying of the Holy Prophet (Peace Be Upon Him) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent". The prosecution is bound to prove its case against the accused beyond any shadow of reasonable doubt, but no such duty is cast upon the accused to prove his innocence. It has also been held by the Superior Courts that the conviction must be based and founded on unimpeachable evidence and certainty of guilt, and any doubt arising in the prosecution case must be resolved in favour of the accused. In the case of Wazir Mohammad v. The State (1992 SCMR 1134), it was held by Supreme Court that "In the criminal trial it is the duty of prosecution to prove its case against the accused to the hilt, but no such duty is casted upon the accused, he has only to create doubt in the case of prosecution". The Supreme Court in another case of ShamoonaliasShamma v. The State(1995 SCMR 1377), held that, "The prosecution must prove its case against the accused beyond reasonable doubts irrespective of any plea raised by the accused in his defence. Failure of prosecution to prove the case against accused, entitles him/them to an acquittal. The prosecution cannot fall back on the plea of an accused to prove its case. Before, the case is established against the accused by prosecution, the question of burden of proof on the accused to establish his plea in defence does not arise.”Reliance is also placed on the case of Naveed Asghar and 2 others v. The State (PLD 2021 SC 600).
14. The sequel of the above discussion is that the learned trial Court has not evaluated the evidence in its true perspectives and thus arrived at an erroneous conclusion by holding the present appellants as guilty of the offence; consequently, the instant criminal jail appeal is allowed; the conviction/sentence awarded to appellantsby way of impugned judgment could not be sustained, it is set aside and they are acquitted of the charged offence. The appellants are in custody they shall be released forthwith if they are not required in any other custody case.
15. The instant Criminal Jail Appeal is disposed of in the above terms.
JUDGE